Seeking spousal support when a marriage ends

Financial support is an issue that arises when a marriage between a United States citizen and a petitioned spouse breaks down. This is particularly crucial when the petitioned spouse is unemployed and has no other means of support as in this case of Maria:

Maria entered the US on a fiancée  visa. Petitioner Peter married her upon her arrival and executed an I-864 or Affidavit of Support (AOS), as part of Maria’s application for a green card. After living together for one year, the couple separated and filed for divorce.

Instead of seeking spousal support through the state family court, Maria was advised by her lawyer to file in federal court where her chances of winning the case were supposedly better. Maria’s lawyer said Peter owed her money under the Affidavit of Support.

The lawyer filed a civil suit for enforcement of contract. The district court ruled in Maria’s favor, taking the AOS as a contract. Peter was ordered to pay spousal support, equivalent to 125 percent of the “poverty income level”, as part of his obligation when he petitioned for Maria’s green card.

Enforceable AOS

Those who are petitioning relatives for US immigrant visas are required by law to execute the AOS. The affidavits are meant to assure the American government that the petitioned relative will not apply for government assistance or welfare.

Although the document is called an affidavit, it is, in fact, an enforceable contract. By signing the affidavit, the petitioner agrees  to support financially the sponsored alien  the equivalent of an annual income of not less than 125 percent of the federal poverty line, as long as the AOS is valid.

Aside from government agencies, the sponsored immigrant may also sue   the US citizen sponsor if he fails to provide the support required by law.

This is what happened in the case of Stump vs Stump. An Indiana Northern District court ordered the US citizen petitioner to pay spousal support based on the AOS he signed.

Limits of enforceability

The petitioner may no longer be liable when:

1. sponsored spouse becomes a naturalized US citizen;

2. sponsored spouse earns enough money in 40 qualifying quarters under the social security law;

3. either the sponsor or the sponsored spouse dies; or

4. sponsored spouse abandons her lawful permanent resident status and leaves the US.

Divorce or separation does not terminate the validity of the AOS.

The civil case for enforcement is filed with the appropriate district court. The case may be for breach of contract or specific performance of the contract.

Poverty guidelines

In executing affidavits of support, the US Citizenship and Immigration Service provides information on what level of income must be maintained by the sponsor to petition a relative. The level is based on poverty guidelines released annually by the US Department of Health and Human Services.

Generally, a spouse seeking financial support based on the AOS is awarded an amount equivalent to what one household will be entitled to. This is about $11,170 per year although the court may modify the amount.

Few sponsored spouses file for enforcement of AOS after divorce. Many feel beholden to their petitioners, who they consider as their genuine sponsors, providing them the opportunity to move to the US.

There are certain arguments the petitioner US citizen  can use to be free of his obligations under the AOS. He can prove that the sponsored spouse committed fraud by using the marriage simply as a means to enter the US.

To avoid civil lawsuits, it is best if separating spouses can enter into amicable settlement agreements on the terms of the dissolution of marriage and spousal support. Or, to be proactive, to draw up documents, similar to prenuptial agreements, where the sponsored spouse waives any future claims against the petitioner.

(Tancinco may be reached at law@tancinco. com or at 887 7177 or 721 1963.)